Andrew J. Winton

The plaintiffs requested an amendment to the court's previous reasons dismissing their request for injunctive relief, citing an error in a transcript regarding whether the Law Society of Upper Canada was investigating the plaintiffs.

The defendant conceded the transcript error but argued the dismissal should be maintained.

The court corrected the factual error in its supplementary reasons but declined to amend its previous order, finding that the plaintiffs' case for injunctive relief was still not ironclad enough to warrant the exceptional remedy sought.

The plaintiff sought leave under Rule 48.04(1) to bring a motion for the production of new material (third year sales data or supporting documents for existing sales data) from the defendants after the action had been set down for trial.

The court applied the stricter test for leave under Rule 48.04(1), requiring a "substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust." The court found that the plaintiff's request for new material, arising from the defendants' inability to provide supporting documents for previously disclosed sales data, did not constitute a substantial or unexpected change in circumstances, especially since the plaintiff had not pursued available remedies earlier.

The motion for leave was dismissed, though the plaintiff was permitted to bring a motion for the original supporting documents without leave.

The appellants appealed the motion judge's decision to strike paragraph 25 of their statement of claim, which alleged that the respondent West Face distributed a defamatory report to unnamed third parties whose identities were known to West Face.

The appellants had already established a prima facie case of defamation by alleging publication to named persons at a specified time and place.

The Court of Appeal held that the motion judge erred in striking the paragraph, finding that the appellants had demonstrated they were proceeding in good faith with a prima facie case and were not on a fishing expedition.

The court allowed the appeal and set aside the order striking paragraph 25.

This endorsement addresses the determination of full indemnity costs following contempt proceedings.

The plaintiff, Sycor, claimed $280,530.83, while the defendants proposed $216,843.46.

The court reiterated that full indemnity costs cover all reasonably incurred fees and disbursements, not extra services.

The defendants challenged the hourly rates of the plaintiff's counsel and discrepancies in billed hours.

The court found the plaintiff's counsel's rates reasonable for Toronto's Commercial List, dismissing the argument that lower defence counsel rates should be determinative.

The court also rejected the use of outdated Civil Rules Committee cost guidelines for full indemnity costs.

A deduction of $22,000 was made for discrepancies in billed hours for the liability phase, but time spent on a preceding judicial settlement conference was deemed reasonably incurred.

Ultimately, the defendants were ordered to pay Sycor costs of $258,530.83 on a joint and several basis.

The appellants appealed an arbitration decision that dismissed their claim for rectification of a unanimous shareholders' agreement.

The appellants argued that the right of first offer clause contained a mutual mistake by allowing a partial take-up of shares, and sought to rectify it to require an all-or-nothing purchase.

The arbitrator found no prior common intention to support rectification.

On appeal, the court held that the issues raised by the appellants were questions of fact or mixed fact and law, not extricable questions of law.

The appeal was dismissed with costs awarded to the respondents.

The applicant, an Indigenous person, sought an urgent interim and interlocutory injunction to restrain the broadcast and display of the Cleveland Indians' team name and 'Chief Wahoo' logo during the American League Championship Series in Toronto, pending human rights complaints.

The court found there was a serious issue to be tried regarding whether the name and logo constituted discrimination in the provision of a service.

However, the court dismissed the application because the applicant failed to establish irreparable harm, noting the delay in bringing the application, and found the balance of convenience favoured the respondents due to the material prejudice of last-minute broadcast and uniform changes.

In the penalty phase of a civil contempt motion, the plaintiff sought to strike the defendants' pleadings, punitive damages, fines, and costs after the defendants were found to have intentionally failed to produce sales invoices and emails, and swore a false affidavit of documents.

The court declined to strike the pleadings or award punitive damages, noting the documents were eventually produced.

Instead, the court ordered the defendants to pay fines of $7,500 and $5,000 to the plaintiff, costs thrown away of approximately $20,000, and the costs of the contempt motion on a full indemnity basis.

The appellant appealed a master's decision dismissing its motion to stay a wrongful dismissal action on the basis of forum non conveniens.

The appellant argued the master erred in considering juridical advantage and in failing to follow a similar Superior Court decision.

The Divisional Court dismissed the appeal, finding the master correctly applied the Supreme Court's guidance in Van Breda regarding juridical advantage and properly exercised his discretion in weighing the factors.

The court held that the master was entitled to distinguish the prior Superior Court decision based on the unique circumstances of the case.

The appellant appealed an order of the Master that allowed some amendments to its statement of claim but disallowed others on the basis that they advanced new causes of action barred by the limitation period.

The Divisional Court allowed the appeal, finding that the disallowed amendments arose out of the same factual matrix as the original claim and merely clarified or expanded upon the existing allegations.

The court emphasized that pleadings should be read generously and amendments presumptively allowed unless they cause non-compensable prejudice or advance a completely separate claim.

The court issued a costs endorsement following the dismissal of the main action.

West Face Capital Inc. was awarded substantial indemnity costs of $1,239,965 due to the plaintiff's unfounded allegations of soliciting and misusing confidential information, which impugned West Face's integrity and honesty.

Brandon Moyse was awarded partial indemnity costs of $339,500.18, despite also facing integrity-damaging allegations, because he had destroyed evidence at the outset of the litigation, albeit without intent to destroy relevant evidence.

The court found the plaintiff's allegations against West Face and Moyse to be serious and unsubstantiated, justifying higher costs for West Face, while Moyse's conduct warranted a reduction to partial indemnity.

The plaintiff, Catalyst Capital Group Inc., brought an action against Brandon Moyse and West Face Capital Inc. for alleged misuse of confidential information regarding WIND Mobile Inc. and spoliation of documents.

Catalyst claimed Moyse, a former analyst, provided confidential information to West Face, which West Face then used to acquire an interest in WIND.

The court assessed the evidence, including witness credibility, and found no direct evidence of information transfer.

The court also examined the elements of breach of confidence and spoliation.

The action was dismissed in its entirety, with the defendants entitled to costs.

The applicants, members of the Ontario Medical Association (OMA), brought a motion for interlocutory orders in a governance dispute concerning a proposed Physician Services Agreement (PSA).

They sought a new notice of general meeting, a revised proxy form, a comprehensive membership list including phone numbers, and the appointment of a neutral chair.

The court dismissed requests for a new notice of meeting, the expanded membership list, and a neutral chair, finding no strong case for intervention on those points.

However, the court granted the request to void the OMA's circulated proxy form, deeming it unhelpful, unclear, unbalanced, and unfair, and directed the OMA to prepare a revised form.

The court exercised its jurisdiction under sections 297 and 332 of the Corporations Act to ensure the fair conduct of the members' meeting and the integrity of the proxy system.

The moving party sought leave to appeal a motion judge's decision dismissing his motion for summary judgment and staying his counterclaim in favour of arbitration.

The underlying dispute involved a supplementary employee retirement plan and a forfeiture clause triggered by alleged competitive activity.

The Divisional Court denied leave to appeal, finding no conflicting decisions or reason to doubt the correctness of the motion judge's conclusion that the factual issues required a trial and were not amenable to summary judgment.

This motion sought to correct the plaintiff's name to include a litigation guardian, Valerie Lummack by her litigation guardian Keith Lummack, due to Valerie's alleged mental incapacity.

The court reviewed conflicting expert evidence regarding Valerie's capacity to instruct counsel, noting discrepancies and the lack of accommodation for her communication deficits in the assessments.

The court emphasized the expert's duty to assist the court and directed the plaintiff's expert to conduct a further clinical interview with Valerie, specifically utilizing accommodations for her communication deficits, or provide reasons why such accommodations are unnecessary, within 30 days.

The defendants were granted leave to file a responding report.

Wrigley Canada Inc. (moving party) sought an interim injunction and an inspection order under Rule 32 to conduct its own environmental testing on the adjacent property owned by Metrus Properties (responding party).

Metrus had sued Wrigley alleging contamination from Wrigley's property and had refused Wrigley access for testing, subsequently beginning excavation work.

The court granted the injunction and inspection order, finding that Wrigley had demonstrated a serious issue to be tried, would suffer irreparable harm if denied access to conduct independent testing before excavation altered the site, and that the balance of convenience favoured granting the order, especially given Metrus's refusal of access and non-disclosure of excavation plans.

The employer brought a motion to stay the employee's counterclaim and refer it to arbitration under a Supplementary Employee Retirement Plan (SERP).

The employee cross-moved for summary judgment, seeking a declaration that certain SERP provisions were unenforceable restrictive covenants and claiming vested SERP entitlements.

The court dismissed the employee's motion for summary judgment, finding genuine issues for trial regarding the enforceability of the SERP's "Detrimental Activity" clause.

The court granted the employer's motion, staying the employee's counterclaim and compelling arbitration as per the SERP's dispute resolution provisions, in line with the public policy favouring arbitration.

The defendant brought a motion to stay a wrongful dismissal action on the basis that Ontario was a forum non conveniens and that the dispute should instead be litigated in New York State.

The court accepted that Ontario had jurisdiction simpliciter because the defendant corporation maintained its registered head office in Ontario.

Applying the forum non conveniens analysis from leading authorities, the court held that the moving party had not established that New York was clearly the more appropriate forum.

Factors such as the Ontario employment contract, the defendant’s presence-based jurisdiction in Ontario, and the loss of legitimate juridical advantages in a U.S. at‑will employment regime supported maintaining the action in Ontario.

The motion to stay the proceeding was therefore dismissed.

Following the dismissal of motions seeking an interlocutory voting injunction, an imaging order, and a contempt order, the court determined the appropriate costs award.

The unsuccessful moving party argued that most costs should be deferred to trial because the evidence overlapped with issues to be litigated on the merits.

The court rejected this submission, applying the principle that a successful defendant resisting interlocutory injunctive relief is generally entitled to costs payable forthwith.

After considering factors under Rule 57.01 of the Rules of Civil Procedure, including the high stakes of the motions, the absence of legal complexity, and certain conduct contributing to the contempt motion, the court fixed reduced partial indemnity costs for each successful defendant.

The respondent to an application for recognition and enforcement of a foreign arbitral award moved to adjourn enforcement pending the outcome of an annulment proceeding in the originating jurisdiction.

The court considered Articles 35 and 36 of the UNCITRAL Model Law incorporated into the International Commercial Arbitration Act.

Applying the balance of convenience approach developed in Canadian jurisprudence, the court held that only an "issue to be tried" was required and that the possibility of the award being set aside justified a temporary adjournment.

However, given the low likelihood of success in the annulment proceeding and the validity of the award, the court exercised its discretion to require partial security as a condition of the adjournment.

The moving party sought three forms of relief in a commercial dispute involving alleged misuse of confidential information: an interlocutory injunction preventing a shareholder from voting its 35% interest in a telecommunications company, an order authorizing forensic imaging and review of the defendants’ corporate servers and devices, and a finding of contempt for alleged breach of a prior consent order.

The court held that the requested voting injunction could not be granted because the moving party failed to provide the mandatory undertaking as to damages under Rule 40.03 of the Rules of Civil Procedure and failed to demonstrate irreparable harm or a favourable balance of convenience.

The requested imaging order was refused because there was no evidence that the responding party had failed to comply with its document production obligations or attempted to conceal or destroy electronic evidence.

The contempt motion also failed because the alleged acts—deleting personal browsing history and installing software capable of secure deletion—did not establish beyond a reasonable doubt that relevant information had been intentionally destroyed in breach of the consent order.