Anthony J. O’Brien

The court dismissed Gorbern Mechanical Contractors Limited’s motion to discharge or stay Feldt Electric Ltd.’s construction lien action, despite Feldt’s non-payment of an adjudicator’s determination.

The decision finds triable issues regarding the contractual scope of work and the fairness and jurisdiction of the adjudication process.

The court declined to stay the action or return security, emphasizing the need for a trial on the merits and the importance of procedural fairness, even where a party is in breach of statutory payment obligations.

The defendant, Corey Sean Libfeld, brought a motion seeking a stay of the action or, alternatively, to prohibit the plaintiff, Pittsburgh Steel Group (PSG), from adducing certain evidence on the basis that PSG’s principal, Zoran Radonjic, violated the deemed undertaking rule by filing documents obtained in discovery with a complaint to the Professional Engineers Ontario (PEO).

The court found a violation of the rule but declined to stay the action, instead prohibiting PSG from adducing specific evidence and ordering costs as a deterrent.

This motion concerned the approval of a class action settlement regarding trailing commissions paid by TD Asset Management Inc. to discount brokers.

The plaintiff alleged improper payments and misrepresentations.

The court approved a $70.25 million settlement for the class, along with the proposed notice plan, distribution protocol, and appointment of an administrator.

The court also approved class counsel fees and disbursements, an interim payment to the litigation funder, release of the funder's security, and an honorarium for the representative plaintiff.

The plaintiff, Peter Ross, brought an unopposed motion to certify a class proceeding against RBC Global Asset Management Inc. and RBC Investor Services Trust.

The action alleges that the defendants breached trust, fiduciary, and contractual duties by paying excessive trailing commissions to discount brokers from mutual fund assets.

The court granted certification, finding all five criteria under section 5(1) of the Class Proceedings Act, 1992, were met, including the disclosure of a cause of action, an identifiable class, common issues, preferable procedure, and a suitable representative plaintiff with a workable plan.

The applicants, Peter and Dorotea Pallotta, sought a declaration under s.178(1)(d) of the Bankruptcy and Insolvency Act (BIA) that the respondent, Licio Edward Cengarle, their former solicitor, was not released from the unpaid balance of a $254,056.89 judgment debt following his bankruptcy discharge.

The debt arose from Cengarle's breach of trust and vicarious liability for his employee's fraudulent mortgage scheme, which involved the misappropriation of the Pallottas' funds from his trust account.

The court found that the debt resulted from misappropriation or defalcation while Cengarle acted in a fiduciary capacity, and the s. 62(2.1) BIA exception for discharge did not apply as the Pallottas did not vote for the proposal.

The court granted the declaration and lifted the statutory stay of proceedings under s. 69.1 of the BIA to allow the Pallottas to enforce their judgment.

This decision concerns the approval of a settlement and a plan of allocation in a securities class action, along with class counsel's fees and disbursements.

The plaintiff sought approval for a US$3 million settlement with the Gatos Defendants and Electrum Group entities, following an earlier settlement with the Tetra Tech Defendants.

The court found the Gatos Settlement to be fair, reasonable, and in the best interests of the class, noting it was reached through arm's length negotiations and recovered a significant portion of estimated damages despite litigation risks.

Class counsel's requested fees (25% contingency) and disbursements were also approved as fair and reasonable, considering the complexity and risks of the multi-stage litigation.

The plaintiff in a certified class action moved to amend the class definition to extend the class period from May 18, 2021, to May 31, 2022.

The defendant opposed, arguing that claims of proposed new class members accruing after the original certification date were statute-barred and not tolled by s. 28 of the Class Proceedings Act, 1992.

The court granted the plaintiff's motion to amend the class definition, finding that while s. 28 does not toll limitation periods for claims accruing after certification for individuals who were not putative class members at the time of certification, the issue of discoverability for these new members should be left to the individual issues phase of the proceeding.

The court also approved the proposed notice plan.

This is a securities class action where the Plaintiff sought approval of a settlement with the Tetra Tech Defendants and pre-settlement orders for a proposed settlement with the Gatos Defendants.

The court approved the C$1,000,000 settlement with the Tetra Tech Defendants, finding it fair, reasonable, and in the best interests of the class.

For the Gatos Defendants, the court granted leave to proceed under section 138.8 of the Securities Act, certified the action as a class proceeding for settlement purposes, and approved the proposed notice plan and ancillary orders, paving the way for a future US$3,000,000 settlement approval motion.

The plaintiff brought an unopposed motion to certify a class proceeding concerning the alleged improper payment of trailing commissions to discount brokers from CIBC mutual funds.

The court applied the five criteria under s. 5(1) of the Class Proceedings Act, 1992, adopting previous judicial analyses for the first four criteria.

The court found the representative plaintiff capable and the proposed litigation and notice plans appropriate, granting the certification order.

In a securities class action, the plaintiff sought multiple orders in advance of a settlement approval motion.

The plaintiff requested leave to proceed against Tetra Tech, Inc. under the Securities Act, leave to discontinue common law negligence and negligent misrepresentation claims against Tetra Tech, and certification of the action as a class proceeding against Tetra Tech for settlement purposes.

Additionally, the plaintiff sought approval to discontinue the action against the Underwriter Defendants based on a Standstill and Tolling Agreement.

The court granted all requested orders, finding that the criteria for leave and certification were met and that the discontinuance against the Underwriter Defendants would not prejudice the class.

This estate litigation involved a dispute between the Estate of William Ronald Parker and his former common-law spouse, Carol Ann Savage, concerning the severance of a joint tenancy of their home.

The Estate sought partition and sale of the property and a priority claim for retail sales tax liability against Ms. Savage.

Ms. Savage counterclaimed, alleging lack of capacity, undue influence, and unjust enrichment.

The court found that Mr. Parker had the capacity to sever the joint tenancy and execute his will, and was not unduly influenced.

The court dismissed Ms. Savage's claim for unjust enrichment, finding she made little contribution to Mr. Parker's care or expenses.

The court ordered the partition and sale of the Broadgreen home, with specific terms for vacant possession, financial assistance to Ms. Savage, and the allocation of costs and liabilities, including Ms. Savage's sole responsibility for the retail sales tax lien.

The plaintiffs sued the Bank for $80 million, alleging it unlawfully froze their accounts.

The Bank counterclaimed for $4.581 million, representing loans advanced under the HASCAP and CEBA COVID-19 relief programs, alleging the loans were obtained through fraudulent misrepresentation.

The Bank moved for summary judgment to dismiss the plaintiffs' action and grant its counterclaim.

The court denied the plaintiffs' last-minute adjournment request, finding it was a deliberate delay tactic.

The court granted summary judgment, finding the plaintiffs fabricated financial statements and businesses to obtain the loans, which were then improperly transferred to personal investment accounts.

The plaintiffs' action was dismissed, and the Bank was awarded $4.581 million plus substantial indemnity costs.

This endorsement addresses the sequencing of motions in a series of related class actions.

The 2018 plaintiffs sought a temporary stay of the 2022 actions.

The defendants proposed hearing the stay motion concurrently with their summary judgment motions, citing limitation period defenses.

The 2022 plaintiffs argued for their certification motion to proceed if the stay was delayed.

The court, acting as case management judge, directed that the motion to stay be heard first, finding no significant efficiencies in combining it with the summary judgment motions and stating that certification motions should only proceed after summary judgment motions are determined.

The moving party bank brought a motion for an interlocutory Mareva injunction against the responding parties, a group of corporate entities and their sole director, who had obtained over $4.5 million in COVID-19 relief loans.

The bank discovered the corporate entities were previously dissolved and revived shortly before applying for the loans, and that the loan proceeds were diverted to personal investment accounts rather than used for eligible business expenses.

The court found the bank established a strong prima facie case of a fraudulent scheme and a real risk of asset dissipation.

The motion for a Mareva injunction was granted, and costs were awarded to the bank on a partial indemnity scale.

The plaintiffs sought interim relief by way of a Certificate of Pending Litigation (CPL) against five properties and an oppression remedy under the Ontario Business Corporations Act (OBCA), specifically the appointment of an inspector to audit financial information.

The court dismissed the request for a CPL, finding that the plaintiffs had no direct interest in the properties, which were corporate assets, and that a CPL would cause disproportionate harm to the defendants.

However, the court granted the request for an inspector, finding that the plaintiffs had standing and established a prima facie case of oppression based on their termination, inconsistent treatment as an employee versus partner, and denial of financial information.

The court determined that an inspector was necessary to clarify commingled funds and determine the plaintiffs' interests, with costs to be borne by the plaintiffs initially.

The plaintiff moved to certify a proposed class action against TD Asset Management Inc. (TDAM) alleging that TDAM improperly paid "trailing commissions" to discount brokers for "service and advice" that was not provided, thereby wasting Mutual Fund assets and causing investor losses.

The court granted certification for claims of breach of trust, breach of fiduciary duty, disallowance of improper expenses under s. 23.1 of the Trustee Act, and prospectus misrepresentation.

However, claims for knowing assistance, knowing receipt, and unjust enrichment were struck as analytically unworkable or lacking a proper basis in fact.

The court affirmed the plaintiff's standing as a unitholder to sue the trustee and manager, and found the class definition and common issues suitable for certification, reiterating that certification is a low hurdle not concerned with the merits.

The defendant, RBC General Insurance Company, sought leave to bring a motion for summary judgment under Rule 48.04 after the action was set down for trial.

The plaintiff, Lourdes Prabaharan (Boniface), opposed the motion.

The defendant aimed to determine if the plaintiff's damages were covered under OPCF-44R, which requires corroborative evidence for claims involving an unidentified automobile, potentially limiting coverage from $1 million to $200,000.

The court applied the considerations from *Dickson v. Di Michele* regarding leave to bring a motion post-trial list, focusing on whether it would be just, expeditious, and proportionate.

The court found that even if successful, the motion would not extinguish the need for a trial, and there was no explanation for the delay in bringing the motion earlier.

The court dismissed the defendant's motion for leave, finding it would not secure a just, most expeditious, and least expensive determination.

The plaintiffs, judgment creditors of Transport Development Inc. (TDI), brought a motion seeking an order compelling Vale Canada Limited (garnishee) and two interested numbered companies to answer questions and produce documents related to the assignment of a contract originally between Vale and TDI.

The plaintiffs sought this information to quantify amounts for a garnishment hearing, alleging the assignment might have been to avoid garnishment.

The interested parties opposed, arguing garnishment rules apply only to "debts" not "contracts," and citing delay, cost, and privacy concerns.

The court found that Rule 60.08(16)(d) provided broad jurisdiction to determine "any other matter in relation to a notice of garnishment," encompassing assigned debts and contracts.

The court emphasized the duty of honest performance in contracts and the relevance of the subsequent assignment to determine rights and liabilities.

The motion for disclosure was granted, subject to a sealing order, with costs reserved.

The bankrupt appealed a decision by the Registrar in Bankruptcy refusing to schedule his discharge application for a hearing before a Commercial List judge.

The Registrar had adjourned the hearing sine die pending the outcome of a separate action by the Trustee against the bankrupt's family for alleged preferential and fraudulent conveyances.

The Superior Court dismissed the appeal, finding that the Registrar properly exercised her discretion by balancing the relevant factors, including prejudice, interests of the parties, and the summary nature of discharge hearings where fraud allegations should be established beforehand.

Following the dismissal of motions brought by a corporate director in receivership proceedings, the court determined the appropriate quantum of costs payable to the secured creditor and the court‑appointed receiver.

The director argued the creditor’s bill of costs reflected over‑lawyering and that legal research should not be compensable.

The court rejected that submission, emphasizing that legal research is an ordinary and necessary component of litigation and is properly recoverable.

Applying Rule 57.01 of the Rules of Civil Procedure and reasonable expectations of the losing party, the court fixed costs at $6,000 plus HST for the receiver and $27,500 inclusive for the creditor.

The court also refused to order that the costs be paid by a company in receivership rather than personally by the director.