Andrew Lenz

The appellant appealed from an order of an associate judge that prohibited discovery motions without leave, made in the context of a dismissed motion for particulars in a lawyer's negligence action.

The court found the associate judge had jurisdiction to make the order as a term under Rule 37.13 or Rule 1.05, rather than under Rule 37.16 which addresses vexatious litigants.

However, the court concluded the order could not stand due to a lack of procedural fairness, as neither party had been given notice that the order was being contemplated or an opportunity to make submissions.

The appeal was granted and the order was set aside.

No costs were awarded as the appeal was unopposed.

The plaintiff, an Ontario-based charity, brought an action for a declaration that it owed no money to the defendant, a US-based charity operating in Colombia, under a funding agreement.

The agreement contained a forum selection clause designating Ontario.

The defendant moved to stay the Ontario action, arguing that the dispute should be heard in Colombia where it had initiated proceedings to annul the forum clause.

The court dismissed the motion, finding that the defendant failed to demonstrate 'strong cause' to override the parties' contractual choice of forum, as the dispute primarily involved contractual interpretation and accounting rather than broad factual inquiries in Colombia.

The Proposal Trustee brought a motion for court approval of the amended joint proposal of Artiva Inc. and Livewell Foods Canada Inc. under s. 58 of the Bankruptcy and Insolvency Act, and a related plan of arrangement under the Canada Business Corporations Act.

The proposal was supported by the majority of creditors, but opposed by a dissenting creditor who sought an adjournment due to late delivery of proofs of claim.

The court denied the adjournment, finding the time to challenge claims for voting purposes had expired.

The court approved the proposal and arrangement, finding them viable, made in good faith, and likely to generate a superior recovery for creditors than bankruptcy.

The noteholders appealed the Proposal Trustee's disallowance of their unsecured claims in the BIA proposals of several subsidiary corporations.

The Trustee had determined that the subsidiaries' guarantees were limited to an initial US$3 million advance and did not cover a subsequent US$12 million advance, and that the initial advance had been fully satisfied by a property transfer.

The Superior Court upheld the Trustee's interpretation of the guarantees but found an error in the debt allocation, ruling that US$828,000 of the guaranteed debt remained outstanding and should be recognized as an unsecured claim.

The moving defendant sought summary judgment dismissing claims for breach of contract, misrepresentation, and unjust enrichment arising from negotiations for the purchase of a steam turbine generator for a co‑generation project.

The plaintiffs alleged that a binding contract arose from a purchase order and letter of intent and that the moving defendant participated in the negotiations and misrepresented issues affecting the project.

The moving party argued no contract was ever concluded and that any dealings were solely with a related corporate entity.

Applying the principles from Hryniak v. Mauldin, the court held that genuine issues requiring a trial existed, including the role of the moving defendant in negotiations, whether contractual relations were formed, and whether misrepresentations or unjust enrichment occurred.

Given the complex factual matrix and credibility issues, summary judgment was inappropriate.

The plaintiffs sought continuation of an ex parte Mareva injunction freezing the defendant’s assets in a civil action alleging fraud, negligent misrepresentation, and unjust enrichment arising from more than $1.6 million paid over thirteen years for alternative therapy.

The court considered whether the plaintiffs established a strong prima facie case and whether the balance of convenience favoured continuation of the injunction.

The court found the plaintiffs failed to demonstrate a strong prima facie case, noting that the payments were voluntarily made for services provided by an astrologist and medium whose credentials were not misrepresented.

The court accepted an undertaking that the net proceeds from the defendant’s Quebec residence would be held in trust pending further order.

The Mareva injunction was therefore not continued except for the confidentiality provisions.

Following dismissal of a motion seeking leave to issue a certificate of pending litigation (CPL), the successful party sought elevated and partial indemnity costs.

The court considered the discretionary authority under s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing proportionality under Rule 1.04(1.1).

Allegations that the successful party had acted in bad faith were rejected, and the court found no basis for elevated costs because there was no reprehensible conduct.

Given the complexity of the motion, the extensive evidentiary record, and the significant commercial property interests involved, partial indemnity costs were found fair and reasonable.

Costs were fixed at $35,000 inclusive of HST and disbursements.

The plaintiff brought a motion for summary judgment in a dispute between brothers concerning an alleged loan.

The motion had previously been adjourned due to deficiencies in the record and later struck from the list because it was not confirmed in accordance with Rule 37.10.1 of the Rules of Civil Procedure.

The court considered whether the motion should proceed and whether procedural consequences should follow.

Given credibility issues, the largely oral nature of the alleged agreement, and the absence of discovery, the court found the summary judgment motion premature and inefficient.

The motion was dismissed, the defendant was granted costs thrown away on the motion, and the action was directed to proceed through production, discovery, and trial preparation under case management.

The plaintiff sought leave to issue a certificate of pending litigation (CPL) in relation to a commercial agreement of purchase and sale for a medical office property.

The plaintiff alleged breach of warranty regarding lease terms and sought specific performance with an abatement of the purchase price.

The court found there was a triable issue concerning breach of the agreement and that the plaintiff had a plausible claim to an interest in land.

However, applying the principles from Semelhago and Southcott, the court concluded that the property was acquired as a commercial investment and that damages would be an adequate remedy.

Considering equitable factors and the balance of convenience, the court declined to grant leave to issue the CPL.