Ara Basmadjian

The appellant, a former lawyer, sued the respondent banks for freezing his accounts after he was charged with money laundering and fraud.

The motion judge granted summary judgment dismissing the action and awarded $225,000 in substantial indemnity costs against the appellant.

On appeal, the Court of Appeal upheld the summary judgment, finding no genuine issue for trial despite the respondents' delay in bringing the motion.

However, the Court granted leave to appeal the costs award, reducing it to $175,000 on the basis that the unaccepted settlement offer should not have elevated costs incurred prior to the offer being made.

The moving party brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

This decision determines the costs following the defendants' successful motion for summary judgment in a long-running civil action.

The defendants sought substantial indemnity costs totaling $371,885.64 for both the motion and the underlying action, while the plaintiff proposed a significantly lower sum of $62,648.44.

The court found that the plaintiff's rejection of a reasonable 2018 settlement offer, his unfounded claim for punitive damages, and his contradiction of discovery admissions justified costs on a substantial indemnity scale.

Ultimately, the court fixed the total costs award at $225,000 inclusive of taxes and disbursements, payable by the plaintiff to the defendants.

The respondent brought a motion to dismiss the appellants' appeal for delay under Rule 61.13(3.1) of the Rules of Civil Procedure.

The appellants had failed to perfect their appeal of an order staying their action on the basis of forum non conveniens for over two years past the deadline.

Applying the test for an extension of time, the court found that the appellants failed to provide a reasonable excuse for the delay, did not rebut the presumption of prejudice, and advanced an appeal lacking merit.

The motion was granted and the appeal was dismissed.

The court granted summary judgment in favour of HSBC Bank of Canada and HSBC Securities Canada Inc., dismissing Kenneth James's claims for conversion, intentional interference with economic relations, defamation, and punitive damages.

The court found that HSBC acted within its contractual and legal rights in freezing and managing the plaintiff’s accounts following criminal charges and a restraining order, and that all funds (except those in Hong Kong, over which HSBC Canada had no control) were returned to the plaintiff after his acquittal.

The court held there was no genuine issue requiring a trial.

The plaintiff brought a motion to compel answers to 79 refusals made by the defendants' representative during examinations for discovery in a 12-year-old action regarding frozen bank accounts.

The court applied the principles governing the scope of permissible discovery questions and ordered the defendants to answer only 6 of the 79 refusals.

The defendants were awarded partial indemnity costs of $9,211.37 for their substantial success on the motion.

The applicant, Appili Therapeutics Inc., brought a motion for an interim order in connection with a proposed plan of arrangement under section 182(5) of the Ontario Business Corporations Act (OBCA).

The arrangement involved the acquisition of Appili's shares by Aditxt, Inc. through its subsidiary Adivir, Inc. The interim order sought to approve the procedure for a special meeting of shareholders to vote on the arrangement.

The court found the arrangement, negotiated by a special committee with independent advisors, provided a significant premium and included minority shareholder protections.

The court also addressed the company's continuance from the Canada Business Corporations Act (CBCA) to the OBCA, finding it transparent and without prejudice to stakeholders.

The court granted the interim order.

The appellant school boards appealed an arbitral award that dismissed their claim for a proportionate share of the respondent insurance exchange's Guarantee Fund upon terminating their memberships.

The court upheld the arbitrator's interpretation of the Reciprocal Agreement, finding that section 7 clearly extinguished a departing subscriber's rights to the fund.

The court also rejected the argument that an implied trust existed outside the contract.

The appeal was dismissed with costs awarded to the respondent.

The plaintiffs appealed the dismissal of their motion to certify a class action against several discount brokers regarding the receipt of mutual fund trailing commissions.

The motion judge had found no basis in fact for the core proposed common issue of whether the receipt of such commissions contravened applicable Canadian securities law prior to their explicit prohibition in 2022.

The Divisional Court dismissed the appeal, finding that the motion judge correctly applied the 'some basis in fact' test, properly concluded that all pleaded causes of action relied on the allegation of illegality, and appropriately held the plaintiffs to their strategic concession that the entire action would fail if the core issue was not certified.

The Plaintiff, Synergy IT Solutions Inc., brought a motion for a status hearing and a timetable to advance litigation, seeking an order to prevent dismissal for delay under Rule 48.14 of the Rules of Civil Procedure.

The Defendant, UTC Fire & Security Canada Inc. (Chubb), opposed the motion, arguing that Synergy failed to provide a reasonable explanation for the delay and that Chubb was prejudiced by the unavailability of key witnesses.

The court found that Synergy provided an acceptable explanation for the delay, largely due to COVID-19 related disruptions to its counsel's small law firm, and that Chubb did not demonstrate non-compensable prejudice, as the witnesses were unavailable even before the critical deadline.

The motion was granted, and a status hearing was ordered to set a timetable.

Costs were awarded to the Plaintiff.

The applicants, Toronto District School Board and Simcoe County District School Board, sought leave to appeal an arbitration decision that dismissed their claim for a share of a guarantee fund upon terminating their membership in the Ontario School Boards’ Insurance Exchange (OSBIE).

The court granted leave to appeal, determining that the interpretation of the standard form Reciprocal Insurance Exchange Agreement constituted a question of law, which is subject to correctness review and of precedential value, thus satisfying the criteria for granting leave under the Arbitration Act.

This application sought court approval for a plan of arrangement under section 182 of the Ontario Business Corporations Act, involving the acquisition of Magnet Forensics Inc. by Morpheus Purchaser Inc. The arrangement included the acquisition of all issued and outstanding shares, options, DSUs, and RSUs of Magnet, with different pricing for 'Rolling Shareholders' who would maintain an equity interest in the combined entity.

The court applied the three-part test for approving arrangements, assessing whether statutory procedures were met, the application was in good faith, and the arrangement was fair and reasonable.

Despite some shareholder dissent, which was below the termination threshold, the arrangement was approved, satisfying all legal requirements.

The plaintiffs brought a motion to certify a class action against seven discount brokers, alleging that their receipt of mutual fund trailing commissions prior to the 2022 prohibition was illegal.

The court found that the plaintiffs failed to satisfy the 'some evidence' requirement to show that the practice contravened applicable Canadian securities law.

The evidence filed by the plaintiffs themselves demonstrated that the practice, while controversial, was not illegal before the regulatory amendments took effect.

The motion for certification was dismissed.

The defendants Mercedes-Benz and Mitsubishi brought a motion to dismiss the proposed class action for delay pursuant to s. 29.1 of the Class Proceedings Act, 1992.

The plaintiffs argued that the court had discretion not to dismiss the action and that all defendants must join the motion.

The court held that s. 29.1 is mandatory and does not require all defendants to join.

The action was dismissed against the moving defendants, but the court exercised its jurisdiction under s. 12 to order that the dismissal be set aside if the plaintiffs file a complete certification motion record within thirty days.

The defendant, a bank incorporated in Hong Kong, brought a motion to stay the plaintiffs' action for lack of jurisdiction or, alternatively, on the basis of forum non conveniens.

The plaintiffs, an Ontario resident and a Panamanian company, sued the defendant over funds held in Hong Kong accounts that were not transferred as instructed.

The court found it had jurisdiction simpliciter because the alleged tort of negligent misrepresentation occurred in Ontario.

However, the court exercised its discretion to stay the action, concluding that Hong Kong was the clearly more appropriate forum given the location of key witnesses, the governing law of the banking contracts, and the location of the funds.

The plaintiffs brought an omnibus motion for certification, settlement approval, notice approval, discontinuance against one defendant, and class counsel fee approval in a proposed class action regarding cancelled educational trips due to the COVID-19 pandemic.

The defendants, travel insurers, agreed to pay 100% of the claims submitted by the class members.

The court granted certification for settlement purposes, approved the settlement as fair and reasonable, approved the notice plan nunc pro tunc, allowed the discontinuance against Arch Insurance, and approved class counsel fees of $435,000 to be paid by the defendants in addition to the class compensation.

The applicant sought a final order approving a proposed plan of arrangement under section 192 of the Canada Business Corporations Act to facilitate a going private transaction.

The arrangement was overwhelmingly approved by the shareholders at a special meeting.

The court found that all statutory and court-ordered requirements were met, the arrangement was put forward in good faith, and it was fair and reasonable.

The final approval order was granted.

The special committee of FAX Capital Corp. brought a motion for an interim order under section 192 of the Canada Business Corporations Act to approve the procedure for calling and holding a special meeting of shareholders.

The meeting was to consider a proposed plan of arrangement intended to take the company private.

The court found that the applicant was acting in good faith and met the statutory requirements.

The interim order was granted, establishing the mechanics for notice, voting, and dissent rights.

The appellants (UDG) appealed a motion judge's decision to permanently stay their Ontario proceeding in favour of ongoing litigation in Singapore and Dubai.

UDG had commenced the Ontario action seeking declarations against the respondents (TAP), effectively advancing as claims the same allegations they made as defences in the foreign proceedings.

The motion judge found that a related loan involving Rutmet was distinct from UDG's loans and that UDG's Ontario action was an attempt to gain a jurisdictional advantage.

The Court of Appeal upheld the motion judge's decision, finding no error in her fact-finding, exercise of discretion, or analysis of attornment and forum selection clauses.

The appeal was dismissed, and the Ontario proceedings remained stayed.

The moving parties sought determination of multiple pre-trial legal questions concerning whether supplier refunds or credits for cancelled educational trips had to be considered under trip contracts, the Travel Industry Act, and excess trip cancellation insurance policies, and also sought to quash a summons to examine their representative.

The court held the motions could not be resolved on a Rule 21 record because material facts remained disputed, the factual matrix was incomplete, and the proposed legal issues overlapped with unjust enrichment, trust, and unlawful means claims that would continue in any event.

The court further held that the requested examination was reasonably necessary because the responding insurers had shown the evidence sought was possibly relevant to the pending issues and the moving parties had not shown the summons was an abuse of process.

The motion to quash was dismissed and the Rule 21 motion was dismissed without prejudice.