Andrea J. Sanche

This case involved two applications concerning a family business dispute.

Arif Al-Ali (father) sought declarations that Anwar Al-Ali (son) breached his duties under a Continuing Power of Attorney for Property (POA) and committed corporate oppression by wrongfully transferring shares and removing the father from corporate positions in Poppa Corn Corporation.

Anwar Al-Ali (son) brought a cross-application seeking specific performance or damages related to an agreement for 50% of Poppa Corn shares in exchange for work in Romania.

The court found that the son breached his fiduciary duties under the POA and that his actions constituted corporate oppression.

The court also determined that the son was not entitled to the shares as he had already been compensated in cash for his work in Romania, and his cross-application was statute-barred.

The father's alleged oppression of the son was dismissed.

The applicants brought a motion to remove Tiffany Jean as Estate Trustee of the Estate of Warren Nelson Holbrook and for an interpretation of the Hotchpot Clause in Mr. Holbrook’s Will.

The court dismissed the motion to remove the Estate Trustee, finding that the applicants had not met the high threshold for removal, despite ongoing family friction and concerns about conflict of interest regarding a family business (Rejenmor).

The court provided directions for the future of Rejenmor, requiring its windup or sale within two years.

Regarding the Hotchpot Clause, the court adopted the Estate Trustee's interpretation, which treated lifetime advances to beneficiaries as gifts rather than loans requiring repayment, resulting in an unequal distribution where only one beneficiary would receive a residual share.

Katerinaville Developments Ltd. brought a motion to quash a notice of arbitration issued by Garthwood Homes Ltd. concerning a joint venture agreement.

Katerinaville argued Garthwood lacked standing, the arbitration clause was unconscionable, and arbitration would be unfair and impractical.

The court dismissed the motion, finding Garthwood was a party to the agreement and had standing.

It held that the unconscionability of the arbitration clause was a matter for the arbitrator under the competence-competence principle, and that the arbitration was neither unfair nor impractical, allowing the concurrent oppression action to continue in court.

The Court of Appeal heard motions to quash an appeal from a trial judge's order approving a sale process for a family business.

The court found the approval order to be interlocutory, serving as a mechanism to implement remedies from the trial judgment, and thus not determining substantive issues.

The correct appeal route for such an order is to the Divisional Court with leave.

Consequently, the motions to quash the appeal were allowed, and the appellants were granted an extension to seek leave to appeal to the Divisional Court.

This costs endorsement followed grouped appeals concerning a wind-up order.

The appeals brought by Mark Libfeld and Corey Libfeld regarding the exclusion of the Shanontown transaction were unsuccessful.

The appeals brought by Jay Libfeld and Sheldon Libfeld concerning a procedural provision in the wind-up order were successful.

Consequently, Jay Libfeld and Sheldon Libfeld were entitled to costs from Mark Libfeld and Corey Libfeld.

The court found the amounts sought by Jay and Sheldon to be excessive due to duplication of materials and disproportionality to the necessary work for the appeals, and ordered a reduced costs schedule.

The defendant brought a motion to stay or dismiss the plaintiffs' action, arguing that Ontario lacked jurisdiction simpliciter, that a forum selection clause mandated disputes be heard in British Columbia, or alternatively, that British Columbia was the more convenient forum.

The plaintiffs had sued for the right to exercise stock options under a consulting relationship.

The court found that Ontario had jurisdiction simpliciter because the consulting agreement was formed in Ontario.

The court declined to enforce the forum selection clause, finding it was not properly incorporated by reference into the stock option agreement and the plaintiffs were not given adequate notice of it.

Finally, the court held that the defendant failed to establish that British Columbia was clearly the more convenient forum.

The motion was dismissed.

Orthoarm Inc. moved for summary judgment to dismiss GAC International, LLC's action, arguing GAC was estopped by conduct from claiming a reduced royalty rate.

GAC's action sought a declaration that royalties should be 5% instead of 10% after another party began selling a bracket using the same patent.

The court dismissed Orthoarm's motion, finding genuine issues of material fact, including GAC's knowledge of the patent use, Orthoarm's detrimental reliance, and the feasibility of Orthoarm licensing the patent to other manufacturers.

The court determined that a trial was required for a fair and just determination.

The appellants, who provided portfolio management services, appealed a decision dismissing their motion for summary judgment.

They argued the respondents' claims for investment losses were statute-barred under the Limitations Act, 2002 and precluded by a release.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusions that the limitation period did not begin until the respondents learned of regulatory settlements, and that the release did not contemplate these specific claims.

The plaintiffs brought a motion for summary judgment to recover amounts allegedly owing on eighteen loans advanced to the defendants between 1990 and 1995.

The defendants raised several issues, including whether the demand loans were converted to shareholder advances, disputes over repayment amounts and allocations, and limitation period defences.

The court dismissed the motion, finding that the conflicting evidence, particularly regarding the characterization of the loans and the credibility of the parties, created genuine issues requiring a trial that could not be resolved using the fact-finding powers under Rule 20.

The moving party plaintiffs brought a motion to strike the responding party defendants' late-filed affidavit on a summary judgment motion.

The defendants had breached two court-ordered timetables and delivered their responding record seven months late, frustrating the plaintiffs' right to cross-examine.

The court declined to strike the affidavit, prioritizing the determination of the summary judgment motion on its merits with a full evidentiary record.

Instead, the court adjourned the summary judgment motion and imposed a strict timetable for cross-examinations and factum delivery, awarding costs of the motion to the plaintiffs.

The plaintiffs sued the defendant portfolio managers for investment losses, alleging misrepresentation, negligence, and breach of fiduciary duty.

The defendants moved for summary judgment, arguing the claims were statute-barred and barred by a prior release.

The court dismissed the motions, finding that the limitation period did not begin to run while the plaintiffs reasonably relied on the defendants' assurances that the losses were due to market conditions, and that the release did not apply to claims that were unknown and not in the contemplation of the parties at the time it was signed.

The appellant appealed a trial judgment dismissing its action for breach of a licensing agreement and patent infringement.

The trial judge found that the respondent's accused products did not infringe the appellant's U.S. patent for a self-ligating orthodontic bracket because the accused products' locking shutter moved primarily through rotation rather than the purely sliding motion required by the patent claims.

The Court of Appeal upheld the trial judgment, finding no error in the trial judge's construction of the patent claims within the context of the specification.

The court also upheld the costs award against the appellant.

The defendants brought a motion for leave to appeal a decision refusing to set aside or strike out a Mareva injunction order on the basis of fraud.

The motion judge had found fraud but refused to strike the order because the fraud was not material to the original decision.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's order and that the proposed appeal did not involve matters of general or public importance.

The defendants appealed a Master's decision dismissing their motion to dismiss the plaintiffs' 2001 action for delay.

The court reviewed the Master's discretionary decision on a standard of palpable and overriding error or error in principle.

The court found that the Master properly considered the evidence, including the parties' settlement negotiations and the lack of actual prejudice to the defendants, who acted as an allied group.

The appeal was dismissed, and the plaintiffs were permitted to continue the action.

The plaintiff, an Ontario corporation, sued the defendant, a Wisconsin corporation, in Ontario for unpaid royalty payments under a licence agreement.

The defendant brought a motion to dismiss or stay the action, arguing the Ontario court lacked jurisdiction simpliciter or was forum non conveniens.

The court found it had jurisdiction because the defendant carried on business in Ontario through its employees and direct sales.

The court declined to stay the action, finding the defendant failed to establish that Wisconsin was clearly the more appropriate forum.

The moving defendants sought an order declaring a 2001 commercial action deemed dismissed under Rule 48.15(6), or alternatively dismissed for delay under Rule 24.01.

The court held that, because a notice of intent to defend had been filed, the action was not effectively deemed dismissed as abandoned, following the existing interpretation of the transition provision for undefended actions.

On the delay motion, the court accepted that lengthy inactivity was plausibly explained by extended settlement efforts between the principal parties and found the moving defendants had not demonstrated actual prejudice or a substantial risk to a fair trial in what was largely a document-driven promissory note dispute.

The motion was dismissed, limitations issues were left for another day, and the court imposed an expedited timetable under the new Rule 48.14 framework.

On three motions for security for costs brought by nine defendants, the court considered Rule 56.01(1)(a), (c), and (d) of the Rules of Civil Procedure.

Where multiple plaintiffs advanced both joint and several claims, the court applied the joint-versus-several claim analysis and held that security could not be ordered for joint claims advanced with an Ontario-resident plaintiff, but could be ordered for claims advanced only by non-resident plaintiffs.

The unpaid prior costs order did not assist the moving defendants because only parties holding the unpaid costs order could rely on that clause, and those parties were no longer defending the action.

The estate plaintiff, as a nominal plaintiff, was also ordered to post security because there was good reason to believe the estate had insufficient assets in Ontario.

Security was ordered in stages and costs of the motions were awarded to three groups of moving defendants.

The plaintiff sought specific performance of an alleged oral agreement granting him a 10% equity interest in a startup company in exchange for his work.

In the alternative, he claimed oppression under s. 248 of the Business Corporations Act arising from his termination and the denial of equity.

The court found that no binding oral contract had been formed, emphasizing the absence of contemporaneous documentation and the lack of objective evidence of mutual intention to create legal relations.

The plaintiff therefore failed to establish offer, acceptance, and enforceable agreement.

The court also rejected the oppression claim, holding that the plaintiff was not a shareholder, officer, or director and had no reasonable expectation of equity.

Following reasons dismissing a motion to stay or dismiss an action for lack of jurisdiction, the court addressed the quantum and scale of costs payable to the successful responding party.

The plaintiff sought substantial indemnity costs due to the complexity of a cross‑border employment dispute and the defendant’s attempt to pre‑empt Ontario proceedings with litigation in another jurisdiction.

The defendant argued costs should be limited to partial indemnity as the motion was reasonably brought.

Applying the principles in Rule 57.01(1) of the Rules of Civil Procedure and the proportionality considerations articulated in Boucher v. Public Accountants Council for the Province of Ontario, the court found substantial indemnity appropriate.

Costs were fixed at $19,177.07 payable within 30 days with post‑judgment interest if unpaid.

The defendant moved under Rule 21.01(c) of the Rules of Civil Procedure to stay or dismiss an Ontario wrongful dismissal action on the basis that the court lacked jurisdiction and that North Carolina was the more appropriate forum.

The moving party relied on contractual terms stating that the agreement was governed by the laws of North Carolina and argued that related proceedings had already been commenced there.

The responding party argued that she had worked in Ontario for 27 years, was paid in Canadian dollars through a Canadian bank, and that the termination occurred in Ontario.

Applying the forum non conveniens principles articulated in Van Breda and subsequent appellate authority, the court held that the defendant had not met the high burden required to displace the plaintiff’s chosen forum.

Ontario was found to be the appropriate forum given the location of the plaintiff, witnesses, and the employment relationship.