Andrew J. Winton

The defendants sought leave to appeal an interlocutory injunction that enforced a non-competition clause and prevented the individual defendant from working for the corporate defendant for six weeks.

The court dismissed the application for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motions judge's application of the RJR-Macdonald test.

The court also noted that the non-competition period had already expired, rendering the matter largely moot and not of public importance.

The moving parties, construction lien creditors of the Mady Group of Companies, brought a motion seeking to lift a CCAA stay of proceedings, amend their statements of claim, and obtain a Mareva injunction against several individuals and corporations.

The court dismissed the motion, finding that the moving parties failed to make full and fair disclosure, failed to establish a strong prima facie case of fraud or breach of trust, and provided no evidence of a risk of dissipation or removal of assets from the jurisdiction.

This was a costs endorsement following a successful motion for an interlocutory injunction.

The plaintiff sought substantial indemnity costs of $155,295.40, while the defendants argued costs should be in the cause because the interlocutory order did not determine the ultimate merits.

The court held that the defendants' conduct was not so egregious as to justify elevated costs and emphasized that the enforceability of the non-competition clause and the existence of damage remained to be tried.

Costs were awarded to the plaintiff in the cause in the amount of $75,000.

Following an earlier finding that a defendant knowingly assisted in a cover-up of the truth by failing to ensure production of sales invoices required by court order, the court determined whether that conduct constituted contempt.

The court held that aiding and abetting a breach of a court order can ground contempt and applied the aiding and abetting framework to the defendant's omissions and knowledge.

Unsworn submissions about counsel conflict, lack of intent, and apology did not displace the prior factual findings.

The defendant was held in contempt, with a further hearing directed on the appropriate relief.

The defendant public authority moved for summary judgment dismissing a long-running action on the basis that the claims were barred by the six-month limitation period in s. 7(1) of the Public Authorities Protection Act.

Applying the summary judgment framework from Hryniak and the public/private power analysis from Des Champs, the court held the record did not permit a confident determination that the impugned conduct correlated sufficiently with the exercise of a public duty or authority.

The evidentiary record suggested the defendant was acting both as regulator and as a commercial actor dealing with potential lessors of Crown near-shore oil rights.

Summary judgment was refused, a mini-trial was declined, and the action was directed to proceed to trial expeditiously.

The defendants brought a motion to compel answers to undertakings and refusals arising from the plaintiff’s examination for discovery in a commercial dispute alleging breach of contract, breach of fiduciary duty, and misuse of proprietary information following the departure of key employees to a competitor.

The court applied the relevance principles under Rules 31.06 and 30.02 of the Rules of Civil Procedure and the governing jurisprudence on discovery scope.

Some questions and undertakings were ordered answered where they were relevant to damages, business dealings, or the alleged misuse of confidential materials, while others were refused as speculative or unrelated to the pleaded issues.

The court also addressed requests for commercially sensitive documents, ordering production of certain manuals and a DVD containing returned documents subject to a confidentiality agreement but rejecting a “counsel eyes only” restriction.

The plaintiff was ordered to provide outstanding undertakings and answers within 45 days and to attend for a further seven hours of discovery.

The defendant Ministry brought a motion for leave to appeal a decision upholding a Master's refusal to dismiss the plaintiff's action for delay at a status hearing.

The delay was largely attributed to the plaintiff's former solicitors.

The court found no conflicting decisions and no reason to doubt the correctness of the reviewing judge's decision, which properly applied the test for delay and deferred to the Master's exercise of discretion.

The motion for leave to appeal was dismissed.

The plaintiff brought a motion seeking the court’s determination of which competing discovery plan should govern the litigation.

The defendants argued that the court lacked jurisdiction to impose a discovery plan or that the request was premature given the absence of a sufficient evidentiary record.

The court held that determining issues such as relevance, proportionality, and unity of interests in the discovery process required a more developed evidentiary foundation and that mediating disputes between competing plans without such evidence would be inappropriate.

The court emphasized that discovery planning is a dynamic process and that parties may later seek directions if disagreements affecting the conduct of the action arise.

The motion was effectively declined, with the court encouraging further negotiation and leaving open the possibility of future procedural directions.

The applicants sought a declaration that they validly exercised a shotgun buy/sell provision in a shareholders agreement, requiring the respondents to transfer their shares in the corporation.

The respondents argued the shotgun notice was invalid because it was issued jointly by two shareholders, and alternatively, that the applicants repudiated the agreement by demanding a release not required by the contract.

The court held that the shotgun provision, interpreted in its factual matrix, allowed for joint exercise by the applicants as a single shareholder group.

The court further found that the applicants did not repudiate the agreement, as they were ready and willing to close without the disputed release, whereas the respondents refused to close.

The application was granted, and the respondents were ordered to transfer their shares.

The defendant Ministry appealed a Master's decision at a status hearing allowing the plaintiff's action to proceed despite a five-year delay.

The Master found the delay was caused by the plaintiff's former counsel failing to act on instructions, and that the defendant would suffer no non-compensable prejudice.

The Superior Court of Justice dismissed the appeal, holding that the Master made no errors of law or palpable and overriding errors of fact in applying the Khan test for delay.

The defendants brought a motion seeking additional production of documents and an order that this action be tried together with or consecutively to a related proceeding.

The plaintiff brought a motion for leave to file a Fresh as Amended Statement of Claim and sought orders compelling further documentary disclosure and updated information from the defendants.

The court held that, following amendment of the pleading, document production should be assessed in relation to the amended claim and limited to documents relevant to common customers and vendors.

The court ordered ongoing disclosure obligations on the defendants regarding common customers and vendors but declined to order the actions tried together.

An interim award of $35,000 was granted to the defendants as costs thrown away arising from the amendment.

The appellants appealed an order declining to stay the respondent's action.

The appellants argued that an arbitration clause in their agreement encompassed the issues raised in the litigation.

The Court of Appeal dismissed the appeal, finding that there was no arguable arbitration provision in the contract at the relevant time, as the written contracts containing such clauses had expired and the appellants had previously communicated their desire not to arbitrate disputes.

The court also agreed with the motion judge that the claims did not fall within the alleged clause and that Ontario was the more convenient forum.

The appellants, having been successful in their appeal which struck the respondent's counterclaim and third-party claim, sought their costs on a partial indemnity basis.

The court fixed the costs for both appellants but declined to include any fees or disbursements related to a voluntary mediation.

The court held that voluntary mediation is not a step authorized by the Rules of Civil Procedure, and as a matter of policy, the costs of voluntary mediation should be borne equally by the parties to encourage settlement efforts without fear of increased costs if unsuccessful.

The appellants appealed an order dismissing their motions under Rules 20 and 21 to strike the respondent's claims for constructive dismissal and related torts as statute-barred.

The motion judge had found that the claims could have been discovered before the respondent resigned, potentially triggering the six-year limitation period under the transitional provisions of the Limitations Act, 2002.

The Divisional Court allowed the appeal, holding that a cause of action for constructive dismissal arises only when the employee resigns.

As the resignation occurred in May 2004, the two-year limitation period applied and the claims were statute-barred.

The court also held that the motion judge erred in linking the Rule 20 and Rule 21 motions, and found no triable issue regarding promissory estoppel or acknowledgment of liability.

The applicant, a former employee and pension plan member, sought an order compelling the employer to commence proceedings to wind up the pension plan under s. 68(1) of the Pension Benefits Act.

The employer brought a motion to strike these claims, which was dismissed by the motion judge and the Divisional Court.

On appeal, the Court of Appeal allowed the appeal and struck the claims, holding that based on the Supreme Court's decision in Buschau, the court does not have jurisdiction to compel an employer to wind up a pension plan at the request of plan members.

Doing so would circumvent the statutory scheme and usurp the authority of the Superintendent of Financial Services.

The appellant appealed a trial judgment finding him liable for fraud and awarding the respondent $216,000 plus costs.

The respondent had been induced to invest $200,000 in a fraudulent scheme perpetrated by a co-defendant, who used the appellant's name and a 'show of money' transaction to give the scheme an air of legitimacy.

The trial judge found that the appellant was wilfully blind to the fraudulent scheme and his role in it.

The Court of Appeal found no error in the trial judge's factual inferences and dismissed the appeal, upholding the finding of liability based on wilful blindness.