Amanda C. McLachlan

The plaintiff, Atlas Copco Canada Inc., brought a motion for contempt of a Mareva injunction against Dirk Johannes Plate and Maria Van Noorden Plate for selling properties despite court orders.

The defendants brought a cross-motion seeking a stay of action against Mr. Plate and dismissal of the action against Mrs. Plate.

The court dismissed the plaintiff's contempt motion, finding no intentional breach by the defendants due to the plaintiff's own non-compliance with the orders and lack of pursuit of real property claims.

Mr. Plate's cross-motion for a stay was dismissed, as the plaintiff was entitled to set off appeal costs against Mr. Plate's restitution debt.

Mrs. Plate's cross-motion to dismiss the action against her was granted on the grounds of merger of claims and, alternatively, inordinate and inexcusable delay by the plaintiff causing prejudice.

This decision addresses costs for an original summary judgment motion after the Court of Appeal set aside the judgment against the defendant, Mr. Plate.

Mr. Plate sought substantial or partial indemnity costs, arguing the plaintiff's motion was unreasonable.

The plaintiff, Atlas Copco, sought to deny costs or have them "in the cause." The court found the plaintiff's summary judgment motion was reasonably brought and did not warrant substantial indemnity costs as a sanction under Rule 20.06(a).

While Mr. Plate was successful on appeal, the original motion significantly narrowed the issues for trial, benefiting both parties.

Considering the divided success and the plaintiff's status as a crime victim, the court ordered that costs of the summary judgment motion be "in the cause," to be determined by the trial judge.

The appellant, a former General Manager and Vice President of the respondent's Construction and Mining Technique division, was convicted of fraud over $5,000 following a jury trial.

The sentencing judge found that the appellant's participation in a fraudulent scheme involving inflated invoices constituted a gross breach of fiduciary duty.

The respondent subsequently moved for summary judgment in its civil action for breach of fiduciary duty, seeking $20 million in damages.

The motion judge granted summary judgment relying solely on the sentencing judge's findings.

The appellant appealed, arguing that the motion judge erred in granting summary judgment based on findings made under s. 724(2)(b) of the Criminal Code that were not express or implied in the jury's verdict.

Staff of the Ontario Securities Commission alleged that a reporting issuer and seven of its former officers and directors contravened Ontario securities law by making materially misleading disclosures regarding copper production and financial performance, failing to maintain adequate internal controls, and providing inadequate risk disclosure.

The respondents admitted to the contraventions and to conduct contrary to the public interest.

The Commission approved a settlement agreement requiring the corporate respondent to make a $28.5 million voluntary payment and pay $1.5 million in costs, while the individual respondents agreed to pay administrative penalties ranging from $350,000 to $2.45 million, pay $50,000 each in costs, and be subject to director and officer bans.

The Commission found the settlement fell within a range of reasonable outcomes and was in the public interest.

The plaintiff brought a motion for summary judgment against the defendant, a former executive, for $20 million in damages arising from a fraudulent kickback scheme.

The defendant had previously been convicted of fraud in a criminal trial and sentenced to five years in prison.

The court applied the doctrine of abuse of process to rely on the factual findings of the criminal sentencing judge.

While the court dismissed the claims for civil conspiracy and civil fraud due to insufficient evidence of the defendant's active involvement in the broader scheme, it granted summary judgment for breach of fiduciary duty.

The court found the defendant's passive acquiescence and failure to stop the known fraud breached his fiduciary duties, making him liable for the full $20 million loss.

Katanga Mining Limited applied for an order under section 17 of the Securities Act authorizing the disclosure of a confidential summons to individuals at four audit firms to assist with a review of past accounting practices.

The Commission granted the request with respect to Katanga's current auditor, finding minimal risk to the ongoing investigation.

However, the Commission denied the request to disclose the summons to the other three audit firms, finding that the potential risk to the investigation outweighed the purported need for disclosure, and instead authorized the disclosure of a letter from Staff confirming the investigation.

The Commission also ordered that its decision remain confidential for a limited period to protect the integrity of the investigation, subject to future publication.

The Monitor in the CCAA proceedings of Nortel Networks Corporation brought a motion to pass its accounts and those of its legal counsel for the period from January 2009 to May 2016.

The fees sought totaled over $250 million CAD and USD combined.

The court applied the Belyea factors to assess the fairness and reasonableness of the fees.

Despite the unprecedented size of the fees, the court found them justified given the massive scale, complexity, and duration of the cross-border insolvency, the extraordinary powers granted to the Monitor, and the highly successful results achieved for the Canadian estate.

The accounts were approved in full.

The appellant, a manager at a provincial jail, filed a human rights complaint after the respondent union president posted sexist comments about her on a union blog during a labour dispute.

The Human Rights Tribunal dismissed the complaint, finding the conduct did not constitute discrimination 'with respect to employment' under s. 5(1) of the Human Rights Code, after balancing the Code's objectives with the respondent's Charter rights to freedom of expression and association.

The Divisional Court upheld the decision on judicial review.

The Court of Appeal dismissed the appeal, confirming that administrative tribunals must consider Charter values when interpreting their home statutes, even absent ambiguity, and that the Tribunal's balancing of these rights was reasonable.

In this proposed securities class action arising from the collapse of a public issuer, the plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of claims on behalf of purchasers of notes and shares in the primary and secondary markets.

Subject to one contested issue concerning former noteholders who had assigned their notes during the class period, the motions were unopposed or proceeded on consent.

The court granted leave and certified the action, holding that the substantive dispute over whether assigned noteholder claims vested in transferees under New York law should be postponed until after certification.

The court found it procedurally preferable and fair to defer that merits issue until after a defence was delivered, thereby avoiding interlocutory delay in a large and complex class proceeding.

The moving parties sought leave to appeal a decision dismissing their Rule 21 motion.

They argued that the action brought by the litigation trust was barred by a Bar Order issued in related class actions, specifically under the phrase 'other claims over'.

The Divisional Court dismissed the motion for leave to appeal, finding that the claims were independent and did not seek contribution or indemnity for damages owed to the class action plaintiffs.

The motion judge's interpretation of the Bar Order was correct and consistent with prevailing case law.

The appellant appealed an order granting the respondent employment agency's motion for summary judgment and dismissing her claim.

The motion judge found no evidence that the agency was contractually obliged to forward her application for a specific position.

The Court of Appeal found no error in the motion judge's conclusion that the claim was based on bare allegations.

The appeal was dismissed, and the appellant was ordered to pay costs of $4,500.

Following the dismissal of her application for judicial review, the applicant opposed an award of costs, arguing the case involved novel human rights issues of public importance.

The Divisional Court rejected this argument, finding the proceeding was a quest for personal vindication arising from fractious collective bargaining, not a public interest matter.

The court awarded the successful respondents $7,500 in costs, discounting their requested amount of $15,000 to exclude expenses related to the involvement of three intervenors.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her complaint of discrimination and harassment.

The complaint arose from sexist blog posts made by a union president during a labour dispute.

The Divisional Court upheld the Tribunal's decision, finding it reasonable to conclude that the blog posts were not made 'in the workplace' and that the Tribunal appropriately considered the union president's Charter rights to freedom of expression and association when determining the posts did not constitute discrimination with respect to employment.

The Tribunal determined the appropriate remedy after previously finding the respondents failed to accommodate the applicant's back injury for a 38-day period.

The applicant sought $25,000 for injury to dignity, feelings, and self-respect.

The Tribunal awarded $6,000, noting the objective seriousness was mitigated by the short duration and the respondents' subsequent provision of appropriate accommodation.

The Tribunal declined to order future compliance remedies, finding the corporate respondent had already implemented satisfactory human rights policies, training, and return-to-work protocols.