A. O’Brien

The plaintiff brought a motion for summary judgment against the defendants for breach of fiduciary duty and misrepresentation related to a failed real estate development project.

The plaintiff sought rescission of the contract and recovery of his $500,000 investment.

The defendants argued that the claims were statute-barred by the Limitations Act, 2002, and raised genuine issues regarding the existence of a fiduciary duty, the cause of the project's failure, and the calculation of damages.

The court dismissed the motion for summary judgment, finding that there were multiple genuine issues requiring a trial, including the nature of the relationship between the parties, the state of the defendants' knowledge, and the limitation period.

The defendants sought leave to appeal orders granting the plaintiff leave under s. 138.8 of the Ontario Securities Act to pursue statutory misrepresentation claims and certifying the proceeding as a securities class action.

The proposed appeal challenged, among other issues, the treatment of U.S. SEC disclosure documents as potential “core documents” and the certification of a global shareholder class alongside a negligent misrepresentation claim.

The court held that the motions judge applied the correct “reasonable possibility of success” standard for statutory leave and was entitled to defer final determinations about the core/non-core document classification to trial.

The court also found no misapplication of appellate authority concerning certification of parallel statutory and common law claims.

As there was no good reason to doubt the correctness of the orders, leave to appeal was refused.

The plaintiff bank sought leave under s. 215 of the Bankruptcy and Insolvency Act to continue an action against a trustee in bankruptcy for damages arising from an unpaid overdraft.

The bank alleged the trustee breached its duty of care by failing to provide notice of the debtor's proposal, sale of assets, and bankruptcy.

The court found that the bank's claim was not frivolous or vexatious and disclosed a factual foundation, particularly regarding the trustee's failure to notify the bank of the bankruptcy when the debtor's accounts held a positive balance.

Leave to continue the action was granted.

The plaintiff alleged breach of contract and bad faith after terminating a lease and selling its dry cleaning business back to the defendant for $35,000.

The plaintiff argued it had been deceived into relinquishing its right of first refusal under the lease because the defendant falsely represented an intention to operate the business personally, but then resold it shortly afterward to a third party for $225,000.

The court held that the plaintiff failed to prove on a balance of probabilities that the defendant misrepresented its intentions or breached a duty of good faith during negotiations.

Evidence from an independent purchaser supported the defendant’s explanation that the subsequent sale arose opportunistically after the lease ended.

Although the court commented that damages could have been approximately $175,000–$190,000 if liability were established, the claim was dismissed.

In a bankruptcy application brought by an unsecured creditor, the respondent debtor moved to compel answers to numerous refusals made during cross‑examination of the applicant’s affiant on the affidavit of verification.

The court considered the permissible scope of cross‑examination in bankruptcy proceedings and held that questions must relate to the statutory requirements under the Bankruptcy and Insolvency Act, the issues in dispute on the bankruptcy application, or the credibility of the affiant.

Many questions sought to revisit issues already determined in an arbitration award and recognition orders, or to explore unrelated receivership proceedings, and were therefore irrelevant.

The court ordered only that the applicant provide evidence of its authorization to commence the application and otherwise dismissed the motion.

The defendants brought motions to adjourn a motion to remove the plaintiff's counsel, to remove the plaintiff's counsel for an alleged conflict of interest, and to amend their Statement of Defence and add a counterclaim.

The court dismissed the adjournment motion, finding the information sought on cross-examination irrelevant.

The court dismissed the removal motion, concluding a reasonably informed member of the public would not find the plaintiff's counsel possessed confidential information about the defendants.

The court also dismissed the motion to amend the pleadings, finding the proposed amendments sought to re-litigate issues already decided by summary judgment, and rejected the proposed counterclaim.

Following the abandonment of a motion by the bankrupt seeking annulment of her bankruptcy, secured creditors sought substantial indemnity costs against the bankrupt, her husband, and her counsel.

The court held that under Rule 37.09(3) of the Rules of Civil Procedure, responding parties are presumptively entitled to costs where a motion is abandoned unless good cause exists to order otherwise.

No such cause was established, as the evidence showed the motion lacked merit and was withdrawn after cross‑examination revealed the evidence would not support annulment.

However, the court declined to impose costs against the husband or counsel, finding insufficient evidence that they caused unnecessary costs or acted improperly.

Partial indemnity costs were awarded against the bankrupt in amounts the court found fair and proportionate.

The applicants, who invested approximately $15 million in the respondent companies, sought the appointment of a receiver following defaults on loans and breaches of a forbearance agreement.

The respondents had agreed to the appointment of a monitor and provided consents to a receivership held in escrow, but subsequently failed to provide the monitor with unfettered access to financial records, delayed adding the monitor as a bank signatory, and made preferential payments to the principal's family members.

The court found that the respondents materially breached the forbearance agreement and side letter, making it just and convenient under section 101 of the Courts of Justice Act to appoint a receiver over all three respondent companies.